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[Delivered before the Law Class of Transylvania, November 1837.]

WERE We, in either the subject or the manner of this initial address, to consult your taste instead of your reason, it would not be, as we have determined that it shall be, an appropriate precursor to the didatic course of the coming winter.

You have come here to learn, and it is my business to try to teach-from the beginning to the end of the session-the rudiments of the most indispensable and comprehensive of all the departments of human science. Law, natural and civil, elementary and practical, is not only multiform, but illimitable-embracing and upholding all that is most interesting to individual and to social man, upon earth.

with the certainty and stability of a known and established code of law, it has, at last, been matured by the enlightened reason of many consecutive generations into a beautiful system of jurisprudence, regulated by principles of rational law, corresponding with the genius of our civil institutions. And now no branch of American jurisprudence is more elementary, and, excepting our organic laws, none is more useful in practice, than that denominated equity. Still, lawyers and judges are generally less acquainted with it than with any other branch of elementary, or practical law; and even some of these seem yet to consider it as an indefinable something, above And therefore, as our aim is utility rather positive law, and as uncertain as popular or than show-naked truth rather than fantas-personal conscience. tic drapery-it is my present purpose to make Although law and equity are generally cona few very plain and general suggestions con-tradistinguished, the one from the other, yet, cerning one of the branches of civil jurispru- when considered with proper precision, they dence; a topic which cannot be made both useful to the student and alluring to miscellaneous auditors. Our subject, being one of dry, deep, and complicated law, appeals to the sober and discerning intelligence of the understanding, scorns all the embellishments of poetry, and needs none of the graces of rhetoric.

are essentially identical in principle. Equity is law-otherwise it would be inconsistent with that certainty and security in the administration of civil affairs which the supremacy of laws can alone ensure. Equity is justice too; but it is justice in a peculiar and technical sense; not variable, like the changing sentiThat code of unwritten reason called "the ments of the chancellor or the multitude, but common law" established in England and as constant as the fixed and rational principles adopted, with various modifications, by all ex-of civil right and civil law. In a judicial cept one of our North American States, is di- sense that cannot be equitable which is inconvided into two primordial departments distin- sistent with the law of the land. In the proper guished by the incongruous titles "LAW" and sense, a court of equity can neither make nor. EQUITY." To exhibit an intelligible out-abrogate any rule of law; nor enforce what the line of the nature, origin, and history of the latter is the purpose of this preliminary dis

co urse.

law forbids; nor relieve from that which the law enjoins; nor decide otherwise than accor ding to the principle and spirit of established Though its peculiar title is inappropriate law; nor interpret a contract or a statute so as and delusive, and many persons, therefore, to give to either an import different from that yet erroneously look upon it either as arbitrary which should be ascribed to it by any other and indeterminate, or as synonomous with judicial tribunal-the intention of the conmoral justice, nevertheless, Equity is as consis-tracting parties is their contract, and the intent, as well defined, and as scientific as any other portion of the common law. It was, in its rude and remote origin, as arbitrary and capricious as the unregulated discretion of a king or of his arrogant chancellor. But, though, for some succeeding ages and even as late as the days of Lord Chancellor Bacon, it was still immature and altogether inconsistant

tention of the Legislature is the law in every forum, and should, in all, be sought and determined according to the same principles and tests. In all these particulars, and in every essential respect, equity is law, and law is equity; and each, therefore, is justice according to the principles of civil right and obligation. Equity is but the philosophy of law-the

spirit and end of the law; and it may there- the legal right, or against whom there is a legal fore be, not inaptly, defined to be rectified law demand, can be made parties; and generally, administered in England by the lord chancel- but one cause of action can be litigated in one lor, one of the king's ministers, and by subor- suit; but a court of equity, anxious to prevent dinate courts of chancery, and in the most of multiplicity and to make its decrees conclusive the states of the N. American Union by courts as to all matters, in any degree connected, and of equity, in peculiar modes better adapted between all persons equitably interested thereto the ends of perfect justice than the technical in, either immediately or consequentially, and and imperfect remedies but too strictly adhered who may be anywise affected, will not only to in those ordinary tribunals called "common permit, but will require all subjects of contro

law courts."

versy thus connected to be united in one suit, and all persons thus interested or who may be thus affected by its decree to be made co parties, or antagonists parties; and it is not material, if there be opposing parties, complaining and defending, whether those interested on the same side be co-complainants and others of them be made defendants, excepting that all who have a joint interest would generally bo more appropriately associated as co-parties.

With the exception of a very few anomalies, the only difference between law and equity is, not in the principle or rule or right, but in the remedy merely-and is, therefore, chiefly modal -and this remedial difference is threefoldthat is: 1st. In the mode of suit. 2d. In the mode of proof and of trial; and, 3d. and principally, in the mode of relief. 1. An action in "a common law court" is brought by a writ and declaration of a prescribed form; the actor is In all those distinctive particulars, courts of called plaintiff, and a perilous and vexatious equity possess an eminent advantage over technicality is observed. A suit in equity is those of strict common law jurisdiction; for instituted by a summons and a bill in the style example; 1st. One suit in equity may effect of a petition adapted to the facts of the case the same end, which several actions at law and unit.fluenced by form or technicality, and might not, as certainly and cheaply, attain. the complaining party is called the complain- 2nd. As there is no technicality in the pleadant. 2d. In an action in a “court of law," the ing in equity, justice is not liable to be vexed, proof is generally oral by witnesses in court, retarded, or frustrated by cobweb forms in and the defendant cannot be compelled to suits in chancery, as is but too often the case make any disclosure against himself; in a suit in common law actions. 3rd. The parties in equity, the proof is documentary; consist- having a right in equity to mutual discoveries ing 1st, of the answer of the defendant, who upon oath, may thus establish important facts may always, excepting in a few peculiar cases, which could not always be shown in legal acbe compelled to respond upon oath to all the tions. 4th. The depositions of witnesses may material allegation of the bill; an efficient pro- be taken in suits in equity, when in consecedure adopted from the modern or Justinane- quence of their remote residence, their persoan civil law, and also from the ecclesiastical nal attendance in other courts could not be courts, which appeal to the conscience of the procured. 5th. The modes of proceeding in parties litigant; and 2d, by depositions in writ- equity may secure an economy, and a certainty ing, which may be taken by a commission or and security, which might be, elsewhere, unat dedimus potestatum, beyond the jurisdiction of tainable. 6th. An enlightened and impartial the court where a common law tribunal would judge is more apt to make proper deductions have no authority to summons a witness; and from facts than an ordinary jury, and if a the trial in courts of equity, in imitation of judge, sitting in equity, desire an inquisition trials before the Roman Prætor and the courts he can have it for the purpose of informing Christian, is generally by the court without and aiding him in doubtful questions of fact; the intervention of a jury; and 3rd, the relief but once having jurisdiction, he will not remit in equity, unlike that given by a judgment of a a case to a common law tribal for trial, and common law court in a prescribed or an unva- is never required to impannel a jury except in a rying form, whatever may be the character of few cases, in which some statute directs it; as, the case, is by a decretal order called a decree, for example, where there is an issue of devisaeither interlocutory or final, giving a full and vit vel non. And certainly there is, at this day, appropriate measure of justice according to and in this country, no peculiar value in the the circumstances of the case, and effectuating trial by jury except in criminal cases, and in the purpose for which all judicial remedy is those, perhaps, of tort; in none of which, has given; and which, not unfrequently, could not a court of equity, jurisdiction. 7th. But the be done by a court which is restricted to one most obvious and eminent advantage resulting simple mode of relief prescribed for and pecu- from proceeding in a court of equity arises liar to each form of common law suit. A court from the power to adapt the relief to the exiof equity, moreover, may enforce its decrees gencies of the case. Thus, for example, whilst and orders, in its own way, and according to for a breach of contract, a court of common its own discretion, by attachment or otherwise; law can only adjudge damages often inadebut a court of law can enforce its judgments quate, a court of equity may compel specific by execution only. And, as to parties and execution; and whilst for fraud, damages only subjects of controversy, there is also an impor- can be adjudged in a common law action, a tant difference between suits in courts of equity rescission of the contract, and a restoration of and actions in courts of common law. In a property, and a reinstatement of the parties common law action, none but those who have in statu quo, may be decreed by a court of

equity; and thus the true spirit and end of the inquisition as to lunacy or idiocy. The coglaw may be effectuated in equity, when the ac-nizance of all such cases belongs to the chan customed technicalities in other courts might not only embarrass, but altogether defeat


cellor of England, not as a judge in equity. but as the ministerial organ of the king; and when there is an issue of fact in any such case The distinction between equity and law, as he cannot try it, but must remit it to another separate departments of jurisprudence, and tribunal to be tried by jury. Lord Redesdale the existence of different tribunals called said that "the jurisdiction in the three cases "courts of equity," in which equity only is ad- of infants, idiots or lunatics and charities, ministered, and of others called "courts of law," does not belong to the court of chancery as a in which technical law alone is applied, is an court of equity, but as administering the preanomaly peculiar to England and to some of rogative and duties of the crown;" and this is the states of our Uniou, which, as well as the doubtless true with this qualification, that true nature of equity itself, can be satisfacto- when a charity is connected with an available rily explained and understood only by the his- trust, a court of equity may, as in other cases tory of the common law of England, from the of trusts, take cognizance of it, but not beorigin of equitable jurisdiction; which was cause it is a charity; for as a mere charity, the first chiefly assumed by the chancellor of Eng. chancellor, acting as the agent of the king, land, and which, after violent and protracted and not as a judge in equity, had a delegated conflicts between that officer and the common power over it to the extent of the pre-existent law judges, has at last attained its present ma-prerogative authority of the crown. turity and firm establishment. The term chancellor is borrowed from impeThe chancellor of England now possesses rial Rome, where the emperor had a confidenboth legal and equitable jurisdiction; and is, tial minister who acted as his register and setherefore, a judicial as well as a ministerial offi-cretary, and was called cancellarius, from the cer. Anciently he had no other authority than circumstance, as many antiquaries believe, that which was delegated to him by the crown, that the place where he usually did his official and was, therefore, ministerial or executive. business was enclosed by cross bars called As the fountain of justice, the king had the cancelli. prerogative right of issuing original writs and In England there was a similar officer with cancelling letters patent, &c., and as parens the like ministerial functions, long prior to the patric, he had the like right to the custody of Norman conquest, and even from time immeidiots and lunatics, the guardianship of in-morial-to whom were confided the powers fants, &c.; and these being onerous to majes-just described, and some other prerogatives of ty, were delegated to his chancellor as his of the crown. ficial organ appointed by only delivering to But as late as the reign of Henry II, the him the great seal of which he is the legal de- chancellor had no equitable jurisdiction; for pository. As the powers thus delegated were neither Glanville nor Bracton has alluded to a altogether prerogative, the chancellor, in re- court of equity as existing in his day. And spect to thein, possessed what is denominated though many believe that the chancellor had, ordinary jurisdiction, coeval with the to some small extent, assumed equitable jurisauthentic history of the common law itself. diction sometime prior to the reign of Edward And therefore, to the extent of those delegated III, yet there is no satisfactory memorial of powers, the British chancery was as ancient the recognition, or even assumption of such auas any of the common law courts of England. thority, until the twenty-second year of that But at first the chancellor had no equitable ju- King's reign; when the sheriffs of London risdiction; this he afterwards mainly assumed, were ordered to give notice that "all such busias will presently appear: and when assumed ness as, by special grace, was cognizable by and established, it was called his "extraordi- the King, should thenceforth be prosecuted benary jurisdiction," in contradistinction to his fore the chancellor;" which was afterwards, delegated legal authority, denominated his in the 37th year of the same King's reign, "ordinary jurisdiction.' And though the ratified by an act of Parliament. The power same officer acts now in both spheres, his pow- thus delegated was the arbitrary and unreguers in each are as distinct and independent as lated prerogative, which had been immemothe jurisdiction of a court of law and that of a rially exercised by the King, of redressing court of equity are understood to be here. grievances, and even controlling suits and Consequently, a mere court of equity here has judgments, upon the petitions of his complainnone of the prerogative powers of the chancel-ing subjects, and which had, doubtless, been lor of England, except so far as they may have been expressly delegated by statute.Such courts have no inherent authority to issue judicial writs, nor to cancel letters patent, nor to appoint guardians for infants, excepting where, an infant being a party to a suit in equity, the judge, having jurisdiction over the case, has the incidental power to appoint a guardian ad litum, or a curator, to take care of property involved in the suit; nor to take custody of lunatics and idiots; nor to hold


occasionally delegated to the chancellor prior to the general delegation sanctioned by the act of Parliament. And here we have the principal reason why bills in chancery are yet in the style of petitions.

But a jurisdiction, inore like that now considered equitable, was, about the same time, probably afterwards, assumed by the chancellor.

The Roman Prætor, who decided according to rules prescribed by himself, and called jus

honorarium, exercised an arbitrary discretion of Salisbury, who was keeper of the rolls, in overruling that which he deemed harsh or adopted, for the first time in the chancery unjust, and supplying whatever he considered court, a summons for compelling-under a defective in the positive law. The emperor prescribed penalty, and therefore called a Augustus, by one of his imperial edicts, or subpana-an appearance and answer upon dered the Prætor to enforce the secret trusts oath. And from that time the equitable juriswhich, under the name of uses, had been fre-diction of the chancellor was rapidly extended, quently contrived for the purpose of evading until, tho' it was not only unregulated, but had the law restricting testamentary dispositions to a great extent been usurped, and, therefore, of property to certain persons, for whose use had awakened the jealousy of the common lawthe dying owner, in order to effectuate his own yers, it was legalized by the statute of sevenwishes, devised it, with a secret trust to an- teenth, Richard II, to the extent to which it other. But, as there was no power to compel had been previously either delegated by the a discovery-the remedy thus prescribed by King or usurped by the chancellor. AfterAugustus was frequently unavailing-and wards, the chancellor, encroaching more and therefore an edict of Justinian, following the more, on the courts of common law, and deexample of the ecclesiastical courts, empow-ciding according to his own caprice, without ered the Prætor to compel the respondent to answer the complainant on oath.

regard to any fixed rule or uniform practice, a statute of 4, Henry IV, declared that judg Sometime in the reign of Edward III, for ments should be irrevocable in any other mode the purpose of evading the mortmain acts, the than by writ of error or attaint. "But continecclesiastical party in England resorted to the ued extensions and encroachments by subseRoman device of uses, which afterwards, du-quent chancellors having occasioned the celering the desolating civil wars between the brated controversy between Lord Coke, then houses of York and Lancaster, were adopted chief justice of the King's bench, and chanby both parties as a common mode of convey- cellor Ellesmere, King James and his counance, to secure the beneficial interest in lands sellors determined that, though the chancellor from forfeiture to the successful party; and should have no power to reverse or overrule a those trusts, though not recognized by the an-judgment of a common law court on the cient common law, which protected the legal ground of error, he might, by acting on the title only, were sustained and enforced in person of the creditor, enjoin the enforcement England by the chancellor, who, being in of his judgment if there should be any equitathose days, an ecclesiastic and instructed in ble ground, not available in the common law the civil law, adopted many of its principles court, for enjoining it. even though they conflicted with those of Cardinal Wolsey, who was, for some time, the common law. The chancellor of Eng- in the reign of Henry III, chancellor of England framed and issued writs in all actions land, greatly extended the equitable jurisdicin the common law courts; and when, by tion of that court; but his decisions, though the extension of business, the expansion of generally approved, were as arbitrary and cacommerce, and the progress of social devel-pricious as his own will. opment, the anciently prescribed forms became And though Sir Thomas Moore, who sucunsuitable for new cases, he refused to pre-ceeded Wolsey, and was the first chancellor scribe a new and appropriate form of legal who had studied the common law, and Bacon, process, and chose rather to administer relief an enlightened lawyer and philosopher, who in his own court on petition to himself as was afterwards chancellor, endeavored to regchancellor. And this was, doubtless, one of ulate equity by principle, and thus to give it the sources of his jurisdiction in equity. The something like system and certainty, it was first case in equity of which the British ar- not matured into anything like a science, but chives, as far as hitherto explored, furnish any was considered as, in a great degree, arbitraauthentic history, occurred in the reign of Rich-ry and unlimited, until Lord Nottingham, ard II, and was a case of trespass, in which the chancellor interfered and controlled a common law court, and relieved the petitioner, on the alleged ground of the partiality and sinister influence of the sheriff. This, though not allowable now, was at that day, only what the king had been in the habit of doing upon petition to himself antecedently to the delegation to the chancellor of the once unlimited royal prerogative of redressing grievances.

(Sir Hineage Finch,) who was, for nine years, chancellor in the reign of Charles 11, brought it from chaos into comparative order and consistency. And from his day the chancellor's decrees in equity, which had never before been reported or admitted to be binding as precedents, were regarded as authoritativeand thus Lord Hardwicke, and Lord Somers, and other distinguished chancellors-all eminer.tly learned in the principles of both the But such cases, and even those of trust, common and the civil law, following, as far which may have been acted on by the chan- as they should have done, former precedents, cellor prior to the fifth of Richard II, must and always deciding according to their judi have been, not only rare, but exparte, and cial notions of principle and analogy-finally therefore, according to the notions of more mod- established, upon the combined principles of ern times, extrajudicial; because, until that the civil and the common law, an harmonious year, there was no mode of compelling the and authoritative system of equitable jurisappearance of the party complained against. prudence, deemed far superior to either of the But during that year John Waltham, bishop elements of which it is compounded.

And now, as already suggested, the chief limited extent, some imperfect legal remedies difference between a court of law and a court called brevia anticipantia, for staying impendof equity is, that the former is restricted in its ing wrongs-would not, to any general or very proceedings to prescribed forms, which are not useful extent, interpose for preventing injury unfrequently insufficient for fulfilling the end or loss--courts of equity have assumed jurisof the law and securing a full measure of jus diction for that purpose in cases in which tice according to the spirit of rational jurispru- there is danger of a loss that cannot be fully dence, and the other, looking to the aim of the and certainly repaired by an ordinary legal law, adapts its remedies, and its modes, and remedy, and which are therefore all fit subits measure of relief to the exigencies of each jects of an anticipating equitable cognizance case, and administers that justice which it upon bills quia timet, so called because the was the object of the law to secure. The hi- complainant fears some irremedial damage, per-technicality of the ancient common law which therefore ought to be prevented. Thus courts of England, and their punctillious ad- a court of equity will compel the surrender and herence to forms and remedies often inappro cancellation of a forged or satisfied obligation priate and inadequate, induced the chancellor because otherwise an unjust use might be to assume a jurisdiction which the public made of it after the death of the apparent opinion finally approved and sustained, and obligor, or a loss of his proof; and, for the like which, when regulated, as now, by the princi-reason, a court of equity will enjoin a tresples of law, subserved the purposes of justice, pass whenever the damage would be irreparaand remedied a defective and often perverted ble, or the remedy in a court of law inadequate judicial administration, without either sub-and will, on the same ground, enjoin waste, verting the policy or frustrating the spirit of or the sale of a copy right, or the abduction or the common law, or shaking that stability destruction of property of a peculiar value to which can be secured only by the supremacy the owner; in which cases a jury could not fulof an established and known judicial system. ly estimate the damage sustained by the inNo despotism could be more intolerable or vex-jured party, if the apprehended wrong should atious than that of arbitrary and erratic dis- be done-and in which, there is no adequate cretion; and therefore equity would be a mon- remedy in a court of technical law: and thus alster, if, as in its infancy, it were now either so a person who owes a debt, demanded by sevlawless, capricious, or uncertain. But eral independent and antagonist claimants, enough has been already said to prove that strangers in law to each other, may, by bill in equity is not now, in England or America, equity, compel the claimants to interplead what it was prior to the time of Lord Notting-so as to secure himself against the danger of ham, and in the days of Grotius and of Poffen-being forced to pay the same debt more than dorf, nor the laximentum legis of Cicero-and once, which, without the aid of a court of to show that distinguished jurists in modern equity, might be the case, as judgment in favo times, feeling the necessity of uniformity and of one stranger could not be pleaded in bar of stability in the judicial administration of jus- a suit by another for the same demand. tice, and co-operating with the spirit of the age in which they lived, have finally succeed-the ed in circumscribing equitable jurisdiction and power, within rational and well-defined bounds, prescribed by principle and analogy; and have thus blended the harmonies of the common and the civil law-each the offspring of a prolonged existence and rectified reason, that belong to no single age of the world.

These few illustrations are sufficient to show

nature and value of the preventive jurisdiction of courts of equity.

The remedial power of equity is either exclusive, concurrent, or auxiliary.

1st. The jurisdiction of a court of equity is exclusive, when in foro conscientiae, or accord ing to universal law, there is a right which (except in a few peculiar cases) is not inconEven at Rome, the various rules adopted by sistent with either the prohibitions or policy different Prætors, and especially the prece-of the local positive law which, being silent dents of successive judges of that class, to whom trusts or cases fidei commissa were confided, were, in the progress of time, collated and made authoritative and binding by "the perpetual edict."

But no system of equity ever equalled that matured by the wisdom of the Anglo-Saxon race, and which we are now considering.

Equitable jurisdiction, as now here and in England established, is limited to civil cases arising from contract express or implied, and is well defined by plain and inviolable rules. 1st. The jurisdiction of a court of equity is either preventative or remedial. As prevention is better than cure, and preventive justice therefore not only is better than that which is punitory or retributive, but is the ultimate object of all human law; and as courts of mere law, though anciently they used, to a very

respecting such a right, or not clearly recognizing it, affords no remedy for enforcing it. This branch of jurisdiction may be illustrated by express trusts, which, being the creatures of equity, and neither recognized nor prohibited by the strict common law, will be enforced by a court of equity only. In such cases of trust, and in many other cases depending on the same principle, it is said that there is an equitable, but no legal right; yet this distinction is not essential, but modal only; for, in the substantial and ultimate sense, equity is law, and that which is equitable is, and of course must be, sanctioned by the common law, as now understood, though, in its or igin, equity was an arbitrary interpolation by the ecclesiastical chancellors of England st first and for a long time resisted, and finally acquiesced in by those organs of public opin

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